Defendant-appellant, Renners Towing ("Renners"), appeals the judgment of the Franklin County Municipal Court holding it liable for damages in the amount of $ 3,269.06 due to the towing of the automobile of Ethel M. Krischak, whose claim was subrogated to plaintiff-appellee, State Farm Mutual Automobile Insurance Company ("State Farm"). Appellant's single assignment of error is:
"THE TRIAL COURT ERRED IN FINDING THAT THE PLAINTIFF ESTABLISHED THE NECESSARY ELEMENT OF PROXIMATE CAUSE TO FIND NEGLIGENCE."
Appellant filed a complaint against Renners alleging that it was negligent in towing a damaged vehicle owned by Ethel Krischak and covered by a policy of insurance issued by State Farm. The complaint arose from an automobile [*2] accident of March 2, 1988, which resulted in damage to the rear of the driver's side of Krischak's 1986 Toyota Camry. On March 8, 1988, Krischak contacted Brunner Brothers, Inc., a body shop, to repair the car. Although Krischak drove the car without any problems throughout the week following the accident, she informed Brunner Brothers, upon the advice of her insurance adjustor, that the vehicle needed towed to the body shop because of damage to the rear wheel. Since Brunner Brothers does not tow automobiles, it arranged to have Renners tow the car from Krischak's home to the body shop.
There was conflicting evidence about whether Brunner Brothers gave Renners specific instructions to tow the car from the rear, and the trial court in its decision and judgment entry did not specifically resolve this issue. Nevertheless, it was undisputed that the vehicle was towed from the rear by Renners to Brunner Brothers contrary to instructions in the Toyota Camry owners manual, as well as the established standard in the towing business to tow cars equipped with automatic transmissions and front wheel drive only from the front.
Immediately after its arrival at Brunner Brothers, the vehicle could [*3] not be driven because it was impossible to shift into the drive gear. Therefore, the vehicle was inspected by AATCO Transmission Company, whereupon it was determined that the car's transmission needed replaced. Eventually, Tansky's Toyota installed a new automatic transmission, the cost of which State Farm paid Krischak pursuant to her automobile insurance policy.
From these facts, the trial court found that a mutual benefit bailment relationship existed between Krischak and Renners for the purpose of towing Krischak's car. The trial court furthermore determined that Renners breached its duty of ordinary care when it improperly towed Krischak's car from the rear and that its breach was the proximate cause of the car's transmission damage. Thereupon, the court adjudicated Renners liable in damages for the cost of the transmission repairs due to its failure to successfully rebut the inference of negligence which arose when Renners, the bailee, failed to redeliver the car with its transmission undamaged at the termination of the bailment.
Appellant's sole contention on appeal is that appellee failed to prove by a preponderance of the evidence that its negligence was the proximate cause [*4] of the transmission damage. In support of this contention, appellant argues that merely establishing a failure to redeliver the car in an undamaged condition does not establish proximate cause and that the absence of an expert witness on the issue of causation, as well as appellee's failure at trial to eliminate every possible cause of the transmission damage, prevented a finding that appellant's conduct caused the damage.
Evidence that Krischak's car was delivered to appellee with an undamaged transmission and redelivered with a damaged transmission established a prima facie case of liability for breach of a mutual benefit bailment for hire between Krischak and appellee. Agricultural Ins. Co. v. Constantine (1944), 144 Ohio St. 275, at 285. HN1 In a mutual benefit bailment relationship, it is the duty of the bailee for hire to exercise due care to prevent damage to the bailed property. Id. at 284.
Procedurally, HN2 once the bailor accepts delivery of the bailed property and fails to return it in the same condition, an inference of negligence on the part of the bailee arises and the burden of going forward with the evidence shifts to the bailee to explain his failure to properly [*5] redeliver the property. Id. at 288. The burden of proof, however, remains upon the bailor to prove every element of negligence against the bailee. In determining whether the bailor met her burden of proof, the trier of fact must consider the inference of negligence arising from the failure to redeliver the property in an undamaged condition, together with the bailee's explanation of the circumstances surrounding such failure and any evidence offered to rebut the inference of negligence arising from the unexplained damage while in the bailee's possession. Allstate Insurance Co. v. Barnhart (March 26, 1981), Franklin App. No. 80AP-890, unreported (1981 Opinions 686). In order for the bailor to prevail, the preponderance of the evidence must support the conclusion that the bailee was guilty of negligence. Id.
The inference that the bailee, Renners, was negligent was properly drawn by the trial court upon appellant's evidence of redelivery of Krischak's Toyota with a damaged transmission. The only evidence presented by appellant of his lack of negligence and exercise of ordinary care was an allegation that Brunner's contributory negligence in instructing Renners to tow [*6] the car from the rear excused Renners from liability.
The trial court was entitled to weigh the evidence and decide whether Renners explanation of non-negligent treatment by appellee was sufficient to offset the inference of negligence. The trial court could properly find that appellee had failed to produce sufficient evidence of lack of negligence to offset appellant's prima facie case of breach of the mutual benefit bailment. It was not necessary that appellant proffer expert witness's testimony to establish proximate cause because appellant introduced sufficient evidence from other sources to sustain the trial court's judgment. Hence, there was no prejudicial error in finding that appellant sustained its burden of proof on the issue of proximate causation when the testimony showed that no transmission problems arose until the car was towed improperly by Renners. Not only was it customary in the towing business, but also explicitly stated in the owner's manual, that automobiles with automatic transmissions should not be towed from the rear because of the likelihood of damage to the transmission.
HN3 Appellant's complaint sounding in negligence which was described as occurring while [*7] the automobile was being towed by appellant was sufficient to allow recovery based on a bailor's liability even though that theory of proof of negligence was not specifically pleaded. See Civ. R. 84 and Form 8; McCormac, Ohio Civil Practice, section 5.03.
Appellant's assignment of error is overruled. The judgment of the trial court is affirmed.